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08/12/87 the People of the State of v. Eric Zemke

August 12, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ERIC ZEMKE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

512 N.E.2d 374, 159 Ill. App. 3d 624, 111 Ill. Dec. 258 1987.IL.1159

Appeal from the Circuit Court of Lake County; the Hon. Jack Hoogasian, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. REINHARD and UNVERZAGT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Defendant, Eric Zemke, entered pleas of guilty to one count of aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12-16) and one count of criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12-15). The trial court sentenced defendant to seven years' imprisonment. On appeal, defendant contends that the length of the sentence and the trial court's refusal to grant probation resulted from the trial Judge's personal aversion to sex offenders, and that the trial Judge cited an improper factor in aggravation of his sentence.

The parties stipulated at the guilty plea hearing that the defendant had engaged in certain sexual conduct with a 14-year-old boy and a 10-year-old boy who were brothers. Defendant had several encounters with the 14-year-old between December 1, 1985, and March 14, 1986, including one in which the boy awoke in the middle of the night and found defendant touching the boy's penis. The boy slapped defendant's hand away. In November 1985, the 10-year-old was awakened in his bedroom on one occasion and discovered that his pajama pants were down at his knees and the defendant was rubbing the child's penis in an up and down fashion. Defendant continued to do so for 15 minutes. Defendant's plea was part of a negotiated plea agreement under which the State agreed to nol-pros two additional counts of aggravated criminal sexual abuse and two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-14), a Class X felony.

At the sentencing hearing, the State introduced testimony from the father of the victims concerning the impact of defendant's actions upon the family. The State also presented testimony from a police officer concerning an alleged encounter between defendant and the four-year-old brother of the other victims. According to the officer's testimony, the boy, who was three years old at the time of the alleged incident, indicated to the officer through the use of an anatomically correct adult male and juvenile male dolls that defendant had engaged in oral sex with him. The State nol-prossed the three counts based upon this incident.

Defendant presented the testimony of David Randall, who held a master's degree in psychology and was a Ph.D. candidate. Randall testified that he had examined defendant and that defendant had rehabilitative potential and was amenable to treatment. Other evidence before the court indicated that the defendant was 22 years old, had no prior criminal history outside of some possible traffic offenses, and served as a volunteer fireman for approximately three years prior to his dismissal as a result of the criminal charges against him. The evidence also indicated that defendant was experiencing difficulties as a result of alcohol abuse. The intensive probation supervision officers who evaluated defendant determined that he was an acceptable candidate and recommended in their report that if the trial Judge was considering imprisonment, he should instead order intensive probation supervision. This report was also before the trial court at the sentencing hearing.

After hearing the above evidence and arguments presented at the sentencing hearing, the trial Judge stated in part, as follows:

"But what you did, even the psychiatrist or psychologist, have difficulty. You have a laudatory position, a lieutenant in a voluntary fire department, dedicated to the preservation of saving of lives, of human beings. You know, what greater honor than to help your fellow mankind? The public put their trust in you. You know, plainly and simply, you are a public officer given their trust, and you violated that trust when you were involved with these boys. You violated that family confidence . . . when they gave their children to you and they were, from the facts presented, lovable, likeable boys. But I cannot think of a worse crime than an aggravated sexual abuse crime. I can tolerate a murderer. I can tolerate a robber. I can tolerate a burglar. But when it comes to sex, you know, even an animal avoids fornication with an offspring from the same birth. You know, your act is very, very heinous. Your act is worse than that animal, at least the animal, by instinct, does different things, and a human being differs from an animal because we are supposed to know how to reason, how to think."

The trial Judge went on to deny defendant's request for probation, stating as follows:

"I agree with Mr. Stone. I don't know whether this is going to stop others from acting in the same fashion or not. I think our legislators and others have inserted things in mitigation and aggravation that politically [ sic ] don't do any good. But we must also protect the interest of the public. Maybe it will better somebody. I don't know. I doubt it though.

But it's a question of rehabilitation versus punishment, and after weighing it very heavily, I don't think you are ready for ...


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